In re Wharton

Garoutte, J. This appellant, an attorney at law, was charged by accusation before the superior court of the county of Sacramento with violating his obligations as an attorney, and after issue joined, upon a hearing, he was found guilty of the charges filed against him, and his license as a practicing attorney revoked. An appeal to this court being accorded by section 287 of the Code of Civil Procedure, the matter is now here for consideration.

The main charges against Wharton, as indicated by the accusation, may be briefly and substantially stated as follows :

“1. As attorney for plaintiff in the divorce action of Hoxie v. Hoxie, commenced in the superior court of the county of Sacramento, Wharton, in violation of his oath and duty as an attorney and to mislead the court, exhibited to the court and filed as genuine a false and fraudulent affidavit of service of summons, to which the name of one Peter Stortz was attached; that the defendant Hoxie had not been a resident of Sacramento county for more than two years, and was not in the county, and personal service of the summons could not be made on him in that county, and his whereabouts was unknown, all of which was well known to said Wharton. In fact, the summons was never served on "Hoxie, either by personal service or by publication, nor did he ever appear in the action. Wharton obtained Stortz’signature by leading the latter to believe he was signing a receipt, and then upon the false affidavit procured the default of Hoxie to be entered, induced the court to accept the [369]affidavit as genuine, had the case tried and a decree rendered in favor of plaintiff, purporting to dissolve the marriage between plaintiff and defendant.”

“2. The accusation further shows that in 1895 Wharton, acting as his own attorney, filed in court a complaint in which he, as plaintiff, sought a decree of divorce from his wife, Hattie Wharton. He returned the summons in this case with a false and fraudulent affidavit of service attached to it, also signed by Peter Stortz, the latter being led to believe by Wharton that he was signing his name as a witness to a will. Upon this fraudulent affidavit Wharton caused the default of his wife to be entered in the action, the same as if she had been served with the summons and had failed to appear within the time allowed by law. He also induced the court to accept the fraudulent affidavit as genuine, and he called the case for trial the same as if the defendant in the case had been regularly served with summons and copy of the complaint and had made default.”